Jamaica, Queens, New York 11439

Dr. J. Kent Donlevy

B.A., B.Ed., M.Ed., LL.B., Ph.D. (Sask.)

Barrister & Solicitor, Notary Public, Mediator

Editor: International Electronic Journal for Leadership in Learning

Associate Professor: Graduate Division of Educational Research

Faculty of Education, University of Calgary

2500 University Drive, N.W.

Calgary, Alberta.

T2N 1N4

Tel: (403) 220-2973

Fax: (403) 282-3005

E-mail: donlevy@ucalgary.ca

 

 

Catholic Schools and the Secular and Sacred Conscience In the Canadian Charter of Rights and Freedoms

 

The Issue

Democracies throughout the world seek to protect the individual’s conscience from state intrusion at least in so far as the interior aspect of conscience is concerned and in part in its expression in society.  However, the term conscience is not normally defined either in common parlance or jurisprudentially. Rather, colloquially it is seen as an unassailable personal argument for an individual’s action or inaction, solely subjective in nature, being an interior personal ability to discern right from wrong. Jurisprudentially it is almost exclusively applied in conjunction with freedom of religion and in terms of principles of equity.

 

This paper asks “what is the operative jurisprudential definition of “conscience” used by courts in Canada, the United States, Great Britain, and the European Courts?”  And further, how does the jurisprudential definition differ from a sacred or religious definition of conscience?

 

The Significance

Canadian courts have, since 1984, been dealing with the term conscience as it is deemed to be a fundamental freedom guaranteed under section 2(a) of the Canadian Charter of Rights and Freedoms (Charter) which reads in part:

 

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

 

The significance of the above questions lies in the fact that although in Canada Catholic schools can seek constitutional protection under the Charter on the basis of their section 2 right to freedom of religion, and under section 29 in relation to constitutionally protected Catholic schools in the provinces of Ontario, Alberta and Saskatchewan, is there a separate and distinct right for individuals within those schools to exercise “freedom of conscience” and if so what definition of conscience arguably applies?  In particular, if that right exists, is the Catholic Church’s definition of conscience, in so far as Catholic school administrative actions are concerned, constitutionally protected under the Charter? These are the questions which this paper will address.